[I]f we get to severability, I see a two-way split much like the two-way split in Booker, with the Chief Justice and Justice Kennedy joining the three more conservative Justices in holding the mandate unconstitutional, and the Chief Justice and Justice Kennedy joining the four more liberal Justices in taking the Solicitor General‘s point of view.

I am not a scholar. I am a practitioner. I spent ten years working for Congress in the nonpartisan Office of Legislative Counsel of the House of Representatives. That means I spent a lot of time working with policymakers in Congress, helping them think through their policies and turn them into written proposals. I have advised clients about severability hundreds of times.

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There is not a lot of scholarship on severability, and if you try to be guided by scholarship you will pass through some weird places. Most scholars seem to have this idea that statutes are based on legislative bargains and that the Court should simply identify the legislative bargain and the severability decision will flow logically from that. As someone who spent ten years on the Hill working for more than five hundred different clients, I am willing to stipulate that statutes exist. I am also willing to stipulate that legislative bargains exist. I am even willing to stipulate that statutes, plural, are the product of legislative bargains, plural. But that statement cannot be reduced to the singular.

A statute is not the result of a legislative bargain. A statute is the product of a convergence of microbargains, between and among 100 senators, 435 representatives, and the White House. Tradeoffs are made within a single legislative provision, sure, but tradeoffs are also made across the various legislative provisions in a single bill. And tradeoffs are also made between this legislative provision and that funding provision, between this provision
and that decision to do something or to refrain from doing something else, between this bill and that bill, between this bill and that hearing, and between this bill and that nomination. There are people who feel confident they can pore over the statute or the legislative history and identify the legislative bargain. They may also be confident they can pore over a sonar image from the depths of Loch Ness and identify the plesiosaur. I agree there are dark shapes in the water but that‘s as far as I will go.

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In sum, seven of the nine Justices have been involved in severability decisions at the Supreme Court, and all of them seem to approach severability in the same way. Justices Sotomayor and Kagan have not been involved in any opinion on statutory severability. The Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito were the majority in Free Enterprise Fund. Justices Breyer and Ginsburg were in the majority in Booker on the question of severability. All seven of these Justices have signed on to opinions on severability involving large, comprehensive public laws. All seven of these Justices have silently applied a functional test to spare the bulk of the public law and narrow the issue to a small window of provisions. And then all seven of these Justices have ended up wielding the blue pencil in a rather narrow way. And yet all seven of these Justices have felt compelled to justify their choice as being what Congress would have wanted. In case after case, to ensure that the chosen outcome passes the political preference test, they have been moving the goal posts to artificially frame the relevant political choice in a particular way.

All of this leaves severability doctrine in a very unstable state. The Court very openly and consistently says it bases its decision on its reading of the underlying politics. The Court‘s forays into political analysis have sometimes sharply divided the Court. And while the political analysis has usually been laborious, it has always been strangely, artificially narrow. In the end, the Court reaches a nearly functionalist result, but gets there in a way that seems contrived.

What heartens me as a functionalist is that the most recent of these cases was clearly the most functionalist. The opinion by Chief Justice Roberts in Free Enterprise Fund spoke a great deal about the need to leave the Act as fully operable as possible and spent far less time speculating about what Congress would have preferred. It remains to be seen how that translates to the ACA, but we probably won‘t have to wait much longer.

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if it comes to severability, then I would guess that there was a decision on the merits written by the Chief Justice and with the votes of Justices Scalia, Kennedy, Thomas, and Alito. I
would also guess that the Chief Justice would write the severability opinion and it would follow the decision he wrote in Free Enterprise Fund—it would be a decision that narrowly severed the individual mandate provisions and left the bulk of the ACA intact. The Chief Justice would emphasize that the Court uses a presumption of severability and strikes as little of a statute as possible.

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I would not expect the Chief Justice to follow Judge Vinson and strike the whole Act, but nor would I expect him to follow the Eleventh Circuit and strike only the individual mandate. The specific finding in paragraph (I) seems to be the sort of evidence that the Chief Justice would accept to strike the other two provisions. The alignment of Justices behind the Chief Justice is an interesting question. I would guess it would include the more liberal Justices: Ginsburg, Breyer, Sotomayor, and Kagan. I would guess it would also include Kennedy. I am less confident about Scalia, Thomas, or Alito. Of these three, I would guess that Justice Thomas is most likely to draw the line as narrowly as the Eleventh Circuit did. I can imagine Justices Scalia and Alito joining him there, arguing for the narrow approach. At the same time, however, I think these are the two Justices most likely to buy the argument that a far larger part of the Act should be stricken, perhaps even all of it.

In short, if we get to severability, I see a two-way split much like the two-way split in Booker, with the Chief Justice and Justice Kennedy joining the three more conservative Justices in holding the mandate unconstitutional, and the Chief Justice and Justice Kennedy joining the four more liberal Justices in taking the Solicitor General‘s point of view.